Kids off the Bus Fire Back: Internship Lawsuit Goes Class Action

Two interns that worked on the film Black Swan have sued 20th Century Fox.

“The summer is past, the harvest is here, and we are not saved,” remarked the prophet Jeremiah about the fall season, and this autumn, another thing that might not be salvageable is the Hollywood tradition of dangling putative glitz and glamor to newcomers to get them to work as unpaid interns as a first step in “dues-paying” their way up the chain of showbiz command.

But two plaintiffs who worked on the film Black Swan, have sued 20th Century Fox, saying, in effect the internship programs have been used simply for unpaid labor – at the “gofer” level of fetching and errand-running – rather than working as an unpaid apprentice, learning rudimentary aspects of a specific skill, which is generally how the position is advertised.

As Joe Satran described it in the Huffngton Post, however, a “small skirmish” was won recently by the plaintiffs – interns Eric Glatt and Alexander Footman – when “Judge William H. Pauley III allowed them to file a motion to amend their suit to expand the plaintiff class to include everyone who has worked as an unpaid intern at Fox Entertainment Group for the past several years.”

The deadline to file the motion is Sept. 5, and the Judge said he would rule on it at a hearing Oct. 9. According to the article, “Pauley encouraged Fox’s legal team not to contest the motion.”

Even though the trial itself – if there is one – isn’t slated for 2013, there’s already fallout from suit. Union Roundup caught up with Gabrielle Wirth, a partner at the international law firm Dorsey & Whitney, who specializes in employee and labor law, especially as it is practiced here in California.

She notes that the problem – having “lost track of an internship being…an internship,” – is endemic in a lot of creative industries, not only showbiz, but fashion and showbiz as well. You couldn’t really send someone for coffee or dry cleaning if it was an internship in building cars, or creating methane-eating bacteria in a lab. But it happens a lot in industries perceived to have “sex appeal.”

There are, she notes, fairly “strict standards put forth by the Department of Labor” about what internships are actually supposed to be, and in response to the lawsuit, she says many studios have “already started paying minimum wage” for these positions.

Which makes it more interesting, since the suit is over unpaid internships. Once the intern becomes paid, even – especially? – at minimum wage, it’s once again fair game to… send them out for coffee and dry cleaning. But employers are also mindful of the overtime provisions that would kick in, so student interns wouldn’t be on set for 13-plus hours of gofering, under this arrangement.

Of course, this also means that once the work is recognized as essentially being paid gofer work – and not an internship – all those potential interns in that potential class-action suit could now be liable for back pay. Talk about residuals!

Wirth’s firm also helps companies structure their own internships to comply with the law. One of the changes she expects to become even more pronounced is that these programs will increasingly be under the province of schools – like UCLA, USC, and Chapman University – that have renowned film programs, and can place students in such programs.

Colleges could help define what “the student expects to get out of” the internship, as well as overseeing that the programs aren’t used strictly as a “pre-interview” process. Not that anyone would object to being offered steady work after completing such a program, but the Department of Labor is pretty clear that you can’t simply set up a program so that someone’s “probationary period,” as it were, is simply unpaid work.

And the schools, she’s pretty sure, would be glad to oversee the programs because it would be “far easier to have their grads” be the ones who have a leg up – due to the on-the-job experience – to find work, the actual paid kind, in the industry afterwards. Plus, the schools can “take the onus off the employer,” i.e., the studios, in making sure the programs are compliant.

And with the studios actually paying their P.A.’s, instead of just calling them “interns,” this may help with another aspect of breaking in. The Huffington Post piece quotes John WIlliams, founder of Reel Works Teen Filmmaking, a group which mentors underprivileged youth to help them break into the film industry. “If you’re a poor kid, or you can’t afford to work for free, and people are saying you should work for free, that’s going to favor kids who can do that, whose parents can pay their bills for years. It probably has an impact on how diverse the film industry is,” he says.

The implication, then, is that the minimum wage job on the set will still give you a leg up compared to, say, the minimum wage job at Wal-Mart or McDonald’s. Though one wonders if ultimately those whose families can afford to send them to the colleges overseeing the internship programs will still have the “legs up.”

Time will tell, and the first steps on that calendar will be the hearing on the motion to expand to “class action width” in the suit, and then – if it gets that far – the actual trial next year.

Meanwhile, if you’re asked to fetch a producer’s dry cleaning, instead of being able to log hours rigging lights or cutting costumes, like you were promised, take comfort in the fact that – at least in California – you’re getting upwards of eight bucks an hour for your efforts. Plus overtime.